The Warren M. Anderson Breakfast Series Seminar’s Campaign Finance session is scheduled for April 29, 2014

The Warren M. Anderson Breakfast Series Seminar’s Campaign Finance session is scheduled for April 29, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on April 29 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

Richard Brodsky and John Faso will discuss Campaign Finance.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329.

Applying for accidental disability retirement and performance of duty disability retirement benefits

Applying for accidental disability retirement and performance of duty disability retirement benefits

2014 NY Slip Op 02120, Appellate Division, Third Department

The Appellate, considering the application of a correction officer [Plaintiff] to review a determination of New York Employees’ Retirement System that denied her applications for accidental disability and performance of duty disability retirement benefits, dismissed the action on the grounds that Petitioner’s application for such benefits was untimely filed.

Petitioner was injured when she slipped on ice while on her way to the building where her locker was located in order to change out of her uniform. Thereafter, she returned to work for only one day and received her last payroll check in July 2009. Petitioner was then placed on unpaid approved medical leave of absence and received workers' compensation benefits.

In January 2011, Petitioner applied for accidental disability retirement benefits under Retirement and Social Security Law §507-a, alleging that she was permanently incapacitated as a result of the injuries she sustained when she slipped on ice some two years earlier. In the alternative, Plaintiff filed an application for performance of duty disability benefits pursuant to §507-b of the Retirement and Social Security Law.

In February 2011, Petitioner was terminated and issued a check representing her accrued vacation pay. In the alternative, Plaintiff filed an application for performance of duty disability benefits. Both applications were denied and petitioner timely requested a hearing and redetermination.

Addressing the issue of the timeliness of Petitioner’s applications for accidental disability retirement benefits the Appellate Division explained that §507-a(b)(2) specifically provides that such an application "must be filed within three months from the last date the member was being paid on the payroll or within twelve months of the last date he [or she] was being paid on the payroll provided he [or she] was on a leave of absence for medical reasons without pay during such twelve month period provided the member was disabled at the time he [or she] ceased being paid."

Noting that Petitioner did not file her application for accidental disability retirement benefits within these time limits, the court ruled that neither her receipt of workers' compensation benefits nor the check she received for accrued vacation time qualifies as payments "on the payroll" for purposes of the statute, citing Matter of Schwartz v McCall, 300 AD2d 887.

Accordingly, the Appellate Division held that the Retirement Systems determination “that [Petitioner's] application [for accidental disability retirement benefits] was untimely is rational and supported by substantial evidence."

Turning to the denial of Petitioner's §507-b application for performance of duty disability retirement benefits, the court conclude that there was substantial evidence supporting Retirement System's determination as both Petitioner and her counsel conceded at the hearing that the January 2009 incident was not caused by an act of an inmate and no proof that would support such a finding was produced at the hearing. Thus, said the Appellate Division, Petitioner's current claim that her fall must have been caused by negligent maintenance on the part of an inmate is speculative and lacks support in the record.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2014/2014_02120.htm

Temporary appointments

Temporary appointments

130 A.D.2d 72, affirmed 72 N.Y.2d 986

§64.3 of the Civil Service Law provides that “Notwithstanding the provisions of subdivisions one and two of this section, the civil service department or municipal commission having jurisdiction may authorize a temporary appointment, without examination, when the person appointed will render professional, scientific, technical or other expert services (1) on an occasional basis or (2) on a full-time or regular part-time basis in a temporary position established to conduct a special study or project for a period not exceeding eighteen months. Such appointment may be authorized only in a case where, because of the nature of the services to be rendered and the temporary or occasional character of such services, it would not be practicable to hold an examination of any kind.”

However, §64.2, which provides for “Temporary appointments from eligible lists,” states that ”A temporary appointment for a period not exceeding three months may be made without regard to existing eligible lists. A temporary appointment for a period exceeding three months but not exceeding six months may be by the selection of a person from an appropriate eligible list, if available, without regard to the relative standing of such person on such list. Any further temporary appointment beyond such six month period or any temporary appointment originally made for a period exceeding six months shall be made by the selection of an appointee from among those graded highest on an appropriate eligible list, if available.”

When Suffolk County dismissed its consulting firm supervising the construction of a sewer project, the State and Federal governments threatened to cut off funds unless the County provided for the required supervision of the project.

Relying on §64.3 of the Civil Service Law, which provides for temporary appointments without examination, the County hired an inspection staff without making such appointments from available eligible lists. The Court found that such lists could have been used for the appointments.

Holding that exceptions to the general civil service policy of filling vacancies in the classified service from appropriate eligible lists is to be strictly construed, the court declared the §64.3 appointments unlawful.

Although §64.3 permits appointments without the use of eligible lists, such appointments are authorized only in exceptional cases. Significantly, the provision requires that it would not be practical to hold an examination of any kind to fill the vacancy. The court's finding that suitable eligible lists were already available proved to be a critical consideration as it obviated any argument that it would not be practical to hold such tests.
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Applying the doctrine of res judicata

Applying the doctrine of res judicata 

2014 NY Slip Op 02005, Appellate Division, Second Department

When the employee [Plaintiff] filed a lawsuit alleging that he had been the victim of unlawful discrimination, Supreme Court dismiss the complaint on the ground that the action was barred by the doctrine of res judicata.*

The Appellate Division affirmed the Supreme Court’s ruling.

Plaintiff was served with disciplinary pursuant to Civil Service Law §75, alleging various types of work-related misconduct, and he was suspended for 30 days without pay. After a hearing, an administrative law judge upheld several of the charges and recommended that the plaintiff be suspended for a period of 30 days, to be satisfied by the prehearing suspension he had already served.

While the disciplinary charges were pending, Plaintiff commenced an action in the Supreme Court alleging defamation and intentional infliction of emotional distress. Supreme Court granted Plaintiff’s employer’s motion for summary judgment dismissing the complaint, which order was affirmed by the Appellate Division in Bayer v City of New York, 60 AD3d 713.

Plaintiff subsequently filed another action in Supreme Court, this time alleging age discrimination and the creation of a hostile work environment in violation of Executive Law §296. Supreme Court granted Plaintiff’s employer’s motion to dismiss the complaint in the instant action on the ground that the action was barred by the doctrine of res judicata.

Explaining that "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding."

Further, said the court, "The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims," citing Pondview Corp. v Blatt, 95 AD3d 980.

The test applied to determine if an action is ripe for application of the doctrine of res judicata is a pragmatic one, involving an analysis of how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit and whether treating them as a unit conforms to the parties' expectations or business understanding. Further, to apply the doctrine there must have been a final judgment on the merits in the prior proceeding.

Finding that Plaintiff’s causes of action arose out of the same transaction or series of transactions as those raised in the initial action. Further, said the court, as Plaintiff commenced his second action, during the pendency of the first action, all of the causes of action asserted here could have been raised in the initial action.

The bottom line: The Appellate Division held that notwithstanding the fact that the causes of action and legal theories alleged in this action are different from those alleged in the initial action, and some of the defendants are different, the Supreme Court properly granted the employer's motion to dismiss the complaint on the ground that the instant action was barred by the Doctrine of res judicata.

* Applying the Doctrine of Res Judicata bars a claim that has either been litigated or that could have been litigated from being litigated again.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02005.htm
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State audits released by New York State Comptroller DiNapoli

State audits released by New York State Comptroller DiNapoli

Click on text highlighted in color to access the full report

On April 17, 2014, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

New York City Department of Environmental Conservation: Controls Over Computers (Follow-Up) (2013-F-27)
An initial audit report, issued in January 2012, found that the department did not place enough priority on ensuring that computer assets were properly controlled and appropriately used. Auditors concluded that these weak management practices increased the risk that equipment may be misappropriated, or used for personal use. In a follow-up, auditors found the department has made some progress in addressing the issues identified in the initial report, but additional improvements are still needed. Of the four prior recommendations, one has been implemented, two have been partially implemented, and one has not been implemented.

State Department of Health: Medicaid Payments for Medicare Part A Beneficiaries (Follow-Up) (2013-F-16)
An initial audit report issued in September 2010 identified $14 million in potential Medicaid overpayments for claims pertaining to 2,564 individuals enrolled in both Medicaid and Medicare. Auditors recommended the Department of Health (DOH) improve its detection of Medicare Part A coverage for Medicaid recipients and prevent improper payments. In a follow-up, auditors found DOH has made considerable progress in correcting the problems identified in the initial audit report. This included the recovery of approximately $22.6 million in Medicaid overpayments. Of the initial report’s four recommendations, three were implemented and one was not implemented.

State Department of Health, Medicaid Program: Improper Payments for Ancillary Services Provided During Hospital Inpatient Admissions (2012-S-160)
Ancillary services refer to health care services provided in the home, medical offices, clinics, and other freestanding sites. Medicaid claims for ancillary services are processed by eMedNY, DOH's automated claims processing and management information system. Claims are subject to various edits – automated controls within eMedNY – designed to pay Medicaid claims in accordance with Medicaid reimbursement policies. During the audit period, eMedNY identified 9,821 improper ancillary service claims totaling about $1 million that were paid and reported to DOH officials. However, at the time of audit fieldwork, DOH had not taken actions to recover these improper payments. In addition, Medicaid paid $368,000 for about 6,600 improper ancillary service claims for recipients who were also covered by Medicare.

Office of Mental Health, New York Psychiatric Center: Controls Over State Resources (Follow-Up) (2013-F-22)
The New York State Psychiatric Institute, established in 1895, is one of two clinical research facilities administered by the Office of Mental Health. The institute conducts clinical trials and research studies relating to the treatment of mental illness. An initial audit report, issued in January 2011, found institute management had not always provided adequate control over state resources. Auditors found insufficient controls to ensure institute employees performed state work commensurate with their pay, and the institute was not taking steps to ensure it was receiving fair compensation for use of its facilities by Columbia University. In a follow-up, auditors found institute officials have made some progress in addressing the issues identified in the initial report, but additional improvements are needed. Of the seven prior recommendations, one has been implemented and six have been partially implemented.

State Department of Transportation: Oversight of Grants (Follow-up) (2013-F-29)
An initial report, issued in July 2011, examined the Department of Transportation’s (DOT) oversight of grant activity. Auditors found that the monitoring performed by the Freight and Passenger Rail Bureau and the Aviation Bureau could be improved with more effective analysis of available data, and through more effective communication and information sharing within the DOT and with other state agencies that also provide grant funding. In a follow-up, auditors found DOT has made progress in correcting the problems identified in the initial report. Of the eight prior audit recommendations, three recommendations have been implemented and five recommendations have been partially implemented. DOT is awaiting implementation of a new statewide grants management system, scheduled for April 2014, which it believes will address several of the remaining issues. 
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Terminated noncompetitive class employee having less than five years of service entitled to back pay and benefits under the terms of a collective bargaining agreement

Terminated noncompetitive class employee having less than five years of service entitled to back pay and benefits under the terms of a collective bargaining agreement

2014 NY Slip Op 02061, Appellate Division, Second Department

The Board of Education adopted the recommendation of a Civil Service Law §75 hearing officer finding the employee [Petitioner] guilty of misconduct and terminating her employment as a teacher's aid without back pay and employment benefits.

Petitioner initiated an Article 78 action challenging the Board’s decision in which she claimed, among other things, that she was entitled to certain back pay and employment benefits.

The Appellate Division held that Supreme Court had properly granted that branch of the Petitioner’s claim that sought an award of back pay and employment benefits.

The court explained that while Petitioner had less than the five years of continuous service which would ordinarily be required for her to be entitled to the protections of Civil Service Law §75,* the collective bargaining agreement between the School District and Petitioner's union extended the protections afforded by Civil Service Law §75 to noncompetitive class employees who had three years of service.

The court held that “as the Supreme Court determined,” once the arbitrator found that Petitioner satisfied the tenure requirements under the collective bargaining agreement, she was entitled to the protections of Civil Service Law §75, including back pay and benefits for any period of suspension in excess of 30 days, up to the date of the disciplinary determination by the appointing authority terminating her employment.

* See Civil Service Law §75[1][c]), which provides, in pertinent part, that an employee “holding a position in the non-competitive class … who since his [or her] last entry into service has completed at least five years of continuous service in the non-competitive class ….” is covered by the provisions of §75.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02061.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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